The latest issue of the European Journal of International Law will be published this week. We will publish a number of posts outlining the contents of this issue and the editorials over the coming week. Here is the Table of Contents for this new issue, as well as the Abstracts:
Afterword: Susan Marks and Her Critics
Barney Afako, If the World Is Not a Family, What on Earth Is It? Afterword to the Foreword by Susan Marks
Maria Aristodemou, The Family Lie: Afterword to the Foreword by Susan Marks
Adom Getachew, International Interdependence beyond the Family of Nations: Afterword to the Foreword by Susan Marks
Dianne Otto, If the World Is a Family, What Kind of Family Could It Be? Afterword to the Foreword by Susan Marks
Umut Özsu, Forms of Families: Afterword to the Foreword by Susan Marks
Articles
Alice Pirlot, ‘This is Not International Law’: International Tax Law and the Disciplinary Boundaries of International Law
Robert Schütze, Koskenniemi’s ‘Lauterpacht’ Revisited
Andrew Chubb, International Law as a Driver of Confrontation? UNCLOS and China’s Policy in the South China Sea
The Theatre of International Law
Damien Charlotin and Michael Waibel, A History of The Hague Academy’s First Century: Computational Insights from the Recueil des cours
Critical Review of Jurisprudence
Jevgeniy Bluwstein, The Trouble with Carbon Budgets, Offsets, and Removals in Climate Litigation Against States: The Case of KlimaSeniorinnen v. Switzerland at the ECtHR
Roaming Charges
Moments of Dignity: Generation Z
Symposium: International Environmental Law after Half a Century
Jorge E. Viñuales, International Environmental Law after Half a Century
Edith Brown Weiss and Lydia Slobodian, Reflections on the Structure of International Environmental Law After Half a Century
Outi Penttilä and Martti Koskenniemi, The Rise of International Environmental Law 1946-1993
Jorge E. Viñuales, A Law of Side Effects?
Review Essay
Simon Chesterman, Untied Nations? Saving the UN Security Council. Review of Mona Ali Khalil & Floriane Lavaud (eds), Empowering the UN Security Council: Reforms to Address Modern Threats and Congyan Cai, Larissa van den Herik & Tiyanjana Maluwa (with Anne Peters and Christian Marxsen (eds)), The UN Security Council and the Maintenance of Peace in a Changing World
Book Reviews
Felix Lange, Review of Thomas Gidney. An International Anomaly. Colonial Accession to the League of Nations
Michel Erpelding, Review of Paulo Borba Casella. International Law, History and Culture
Natalie Jones, Review of Shannonbrooke Murphy. The Human Right to Resist in International and Constitutional Law
10 Good Reads
Joseph H.H. Weiler, My Patria is the Book: 10 Good Reads 2025
The Last Page
Heinrich Heine, Adam der Erste
Correction to:
ABSTRACTS
Barney Afako, If the World Is Not a Family, What on Earth Is It? Afterword to the Foreword by Susan Marks
While Susan Marks’ trenchant critique of the family metaphor in international law in her EJIL Foreword will resonate with many readers, her repudiation will fail to persuade those whose experience of the family is not entirely bleak. Drawing from the African continent, where ideas of family anchor social cohesion and diverse public policies, and from the global climate debate, where intergenerational discourses are increasingly receiving formal legal recognition, I illustrate that the family is very much alive, if not always doing well. Rumours of its demise and obsolescence will remain unfounded as long as the family continues to inspire personal, social and global goods.
Maria Aristodemou, The Family Lie: Afterword to the Foreword by Susan Marks
I wrote these thoughts in response to Susan Marks’ critique of the metaphor of the world as a family. I read Marks’ article while a genocide was raging relentlessly so, of course, my thoughts revolved around the failure of the international community and of international law and its institutions to do anything to stop it. What kind of family fails so dramatically at curbing such extreme violence, I wondered. Using a psychoanalytic lens, I analyse the development of the superego in individuals, in groups and, finally (and most unsuccessfully), in states. Adding to Marks’ suggestion for a sublation of the family, I suggest a sublation of international law and a move away from its focus on states to a focus on individuals. My article deplores the insistence on homogeneity in groups, whether the group is formed around family, kinship, ethnic identity, religion, race or nationhood. Such insistence inevitably leads to exclusions and, in the worst instances, to genocide.
Adom Getachew, International Interdependence beyond the Family of Nations: Afterword to the Foreword by Susan Marks
This afterword takes up Susan Marks’ argument to take seriously the metaphorical uses of the idea of the family in international law and to renew the terms by which we understand global interconnection. Drawing on anti-colonial and post-colonial perspectives, the article seeks to reimagine concepts associated with the family such as dependence, care and inheritance. It does so by foregoing the familial emphasis on monogenesis and emphasizing the ways in which history of slavery and colonialism have integrated the world in deeply hierarchical and unequal ways.
Dianne Otto, If the World Is a Family, What Kind of Family Could It Be? Afterword to the Foreword by Susan Marks
In this Afterword to Marks’ thoughtful provocation, I offer alternative, emancipatory imaginings and practices of kinship that offer life-sustaining relational connections between people(s) as well as between humans and all other forms of life. To this end, I explore two such assemblages. The first of these was developed during the Cold War years as a ‘third way’ to organize global relations cooperatively, emerging from the early efforts of post-colonial states to create an anti-imperial world order. The second is the more recent, still precarious, emergence of queer kinship communities from their many ‘closets’. I conclude that these cooperative and queer kinship imaginaries offer hope that it may yet be possible to reconfigure the imperial system of nation-state-generated relational loyalties, based on the treacherous metaphors of ‘traditional’ family forms that endanger us all, including the planet itself.
Umut Özsu, Forms of Families: Afterword to the Foreword by Susan Marks
Susan Marks’ insightful and wide-ranging Foreword invites readers to reconsider the meaning of families and the circulation of familial discourse in and about international law. Marks argues that familial rhetoric, though multiple and multi-vectoral, lends itself to both naturalization and sentimentalization, and that ‘family figurations in international discourse’ are especially apt to legitimate structures of exploitation and exclusion (or inclusion, though on violent, intrusive or simply unsatisfying terms). This Afterword revisits Karl Marx and Friedrich Engels’ critique of the bourgeois family form, demonstrating that neither was an ‘abolitionist’ of families in general and that both maintained that what would follow the social transformations required to overcome capitalism could not be predicted in advance. It concludes by suggesting that it is just as possible that the future will bring forth new forms of families as it is that it will engender no families at all, on the international plane as elsewhere.
Alice Pirlot, ‘This is Not International Law’: International Tax Law and the Disciplinary Boundaries of International Law
International tax law, as an academic field, is traditionally viewed as lying outside the broader discipline of international law. This makes international tax law an interesting case for exploring the disciplinary boundaries of international law and their manifestations. This article argues that the apparent separation between international tax law and international law can be linked to a series of choices made by international law scholars and international tax law scholars in the 20th century that contributed to the compartmentalization of the two scholarly communities. By shedding light on such a compartmentalization, this article hopes to encourage more dialogue between today’s international law and international tax law scholars. If social dynamics indeed play a key role in the emergence of subfields of international law, then such a dialogue could lead to a rethinking of the disciplinary boundaries of international law.
Robert Schütze, Koskenniemi’s ‘Lauterpacht’ Revisited
Hersch Lauterpacht’s normative project has been subject to a number of excellent studies in the past – most notably, by Martti Koskenniemi. The central image of the latter’s ‘Lauterpacht’ is, famously, that of a backward-looking thinker: Lauterpacht is portrayed as a ‘natural lawyer’ who nostalgically looks back into the 19th century as the last representative of a ‘Victorian tradition’ in international law. This article wishes to critique and challenge this influential intellectual portrait. In order to do this, it revisits Lauterpacht’s rich academic oeuvre in three sections. Section 2 begins with a reconstruction of Lauterpacht’s understanding of the judicial function – a function on which much of Koskenniemi’s Lauterpacht hinges. Section 3 explores the legislative function within Lauterpacht’s international legal order, while section 4, subsequently, investigates the ‘function’ given to natural law in Lauterpacht’s normative project. Section 5, finally, offers a critical challenge to Koskenniemi’s ‘Lauterpacht’ and re-evaluates the place that he should be given within the history of 20th-century international law. A conclusion contends that Lauterpacht is best characterized as a utopian international federalist, whose supranational legacy has largely remained unredeemed.
Andrew Chubb, International Law as a Driver of Confrontation? UNCLOS and China’s Policy in the South China Sea
Could international law contribute to interstate maritime conflicts? A close tracing of the People’s Republic of China’s (PRC) policies in the South China Sea suggests it might. China’s early interactions with the emerging maritime legal order in the 1970s expanded the scope of its interests from disputed island territories to comprehensive jurisdiction over vast swathes of maritime space. Ratifying the United Nations Convention on the Law of the Sea (UNCLOS) in 1996 mobilized Beijing to develop new bureaucratic and enforcement capabilities designed to realize sweeping maritime claims inspired by, though not limited to, UNCLOS entitlements. When these capabilities came to fruition in the mid-2000s, they enabled a sustained, increasingly coercive push for control over the PRC’s maritime periphery, which has continued to the present. Four representative cases of China’s new and ongoing patterns of behaviour demonstrate in specific detail how China’s interactions with the legal regime have contributed to its confrontational on-water behaviour. In short, the PRC’s campaign to control vast swaths of East Asian maritime space was rooted in the party-state’s internalization of concepts of maritime rights through the UNCLOS process, coupled with a rejection of its corresponding limitations.
Damien Charlotin and Michael Waibel, A History of The Hague Academy’s First Century: Computational Insights from the Recueil des cours
The Hague Academy’s flagship publication, the Collected Courses/Recueil des cours, sheds light on the evolution of international law over the last century. Our computational analysis reveals a dynamic field that expanded into new domains even as other fields receded into the background. Headquartered in the Netherlands and established with US funding, the Hague Academy was, from the outset, a Western institution. Its Collected Courses and their authors underscore this legacy. We tested two hypotheses through computational analysis: first, that the Academy has thus far under-delivered on its aspiration of being representative of all regions and legal traditions and, second, that the characteristics of the Collected Courses, such as length, language and topics, have changed over the Academy’s first century in light of political developments and shifting policy priorities. Our findings confirm both hypotheses. Empirically mapping the characteristics of the courses and the lecturers over the past 100 years affords a ‘bird’s eye’ view of the Hague Academy that allows for a better understanding of its evolution. The findings of our data analysis provide the groundwork for deeper scholarly inquiry into how they might interconnect and relate to the construction of international expertise and authority.
Jevgeniy Bluwstein, The Trouble with Carbon Budgets, Offsets, and Removals in Climate Litigation Against States: The Case of KlimaSeniorinnen v. Switzerland at the ECtHR
The European Court of Human Rights’ (ECtHR) judgment in KlimaSeniorinnen v. Switzerland represents a critical juncture in climate litigation. By endorsing a national carbon budget in combination with an extraterritorial, consumption-based approach to state responsibility, while sidestepping the contentious issues of carbon offsets and removals, I show how the Court has created an implementation paradox. The judgment cannot be implemented in a meaningful way in a context where Switzerland’s fair-share carbon budget is already exhausted and negative, and it is almost exhausted if we adopt a per capita approach. A negative fair-share carbon budget would entail an ‘emergency brake’, while a still remaining positive per capita carbon budget would require unprecedented emission reduction rates far beyond the temporality and scale of economic lockdowns imposed during COVID-19. The judgment thus highlights the limits of climate litigation against states at a time of exhausted carbon budgets and an over-reliance on questionable carbon offsets and highly speculative carbon removal promises. KlimaSeniorinnen is poised to become another symbolic victory without substantive policy change, highlighting the growing disconnect between climate litigation and the political-economic reality of a fossilized climate regime enshrined in the Paris Agreement.
Edith Brown Weiss and Lydia Slobodian, Reflections on the Structure of International Environmental Law After Half a Century
We inhabit a new geological epoch – the Anthropocene – in which humans are the major force affecting the Earth System, with potentially catastrophic results. We also live in a kaleidoscopic world with many actors, in addition to states, many different legal instruments and abrupt, rapid changes in issues and coalitions. Increasingly, we face problems of commons and public goods at multiple geographical levels. This is the reality that international environmental law now must govern. While this body of law has had certain successes in the last half-century, progress in many areas has been incremental. As this article argues, international environmental law must undergo transformational change that takes account of these critical changes in the global context, reconsiders the adequacy of legacy legal structures and treats the Earth as a holistic system with humanity as an integral part. Specifically, it needs to overcome five disconnects: (i) between the narrow anthropocentric scope of legal frameworks and the integrated character of the Earth System; (ii) between the siloed and ad hoc approach to individual environmental problems and their integrated connection in the Earth System; (iii) between the legal need for certainty and the inherent uncertainties and changes in the relevant science; (iv) between the legal prioritization of the present generation and the needs of future generations; and (v) between the theoretical recognition of the rights of marginalized and vulnerable communities and indigenous peoples in sustainable development and their practical exclusion from participation and justice.
Outi Penttilä and Martti Koskenniemi, The Rise of International Environmental Law 1946-1993
Environmental lawyers have devoted little attention to their discipline’s past, and when they have done so, they have often narrated the past as showing that the field is becoming progressively more self-aware and sophisticated so as to reach its present stage of maturity. In this article, we trace a somewhat different course. We follow the emergence of the field from the 1950s to its eventual collapse into ‘sustainable development’. To do this, we examine the processes that created and shaped its boundaries in such a way that it gradually came to see itself as a specific type of professional project with a blueprint for international legal reform. We examine the way in which topics became included in and excluded from the field. And we focus especially on the diplomatic, professional and academic tensions that shaped the field and eventually led it from its early environmentalist orientation to its present-day efforts to engage with wider issues of social development and international justice.
Jorge E. Viñuales, A Law of Side Effects?
A reader examining a contemporary account of international environmental law 20, 30 or 50 years from now may be interested not only in its accuracy but also in what the account conveys of our own generational perception of our past. By then, several features will have become evident to that reader, which our generation missed or under-estimated. One above all is likely to connect our and their perception of what international environmental law had to face: humanity, through its production and consumption processes, is changing not only human history but also the dynamics of the entire Earth System in what some see as a new geological epoch defined by humans, the ‘Anthropocene’. This major fact is and will remain with us, and the extent to which it can be addressed depends on whether we see it and integrate it in our policies. This article argues that such is not the case of the social practice we call international environmental law, and this is, above all, for a very specific reason: international environmental law is built around an asymmetry between the legal organization of production and consumption processes – the ‘transaction’ – and the regulation of their side effects or ‘negative externalities’. At the core of international environmental law lies a deliberate effort to preserve legal space for the transaction – the very processes that led us into the Anthropocene – while aiming to minimize its negative side effects for the global environment. It is an odd mismatch, akin to a legal requirement to keep the dam gates open while also requiring that the flooded areas be kept as dry as possible. International environmental law is faced with impacts affecting the geological timescale, but it is structured to preserve the cause of the problem and focus on side effects unfolding in a human timescale.
Simon Chesterman, Untied Nations? Saving the UN Security Council. Review of Mona Ali Khalil & Floriane Lavaud (eds), Empowering the UN Security Council: Reforms to Address Modern Threats and Congyan Cai, Larissa van den Herik & Tiyanjana Maluwa (with Anne Peters and Christian Marxsen (eds)), The UN Security Council and the Maintenance of Peace in a Changing World
The United Nations Security Council is often criticized for being unrepresentative, paralyzed by the veto and impotent in the face of major conflicts. Yet, beneath these familiar complaints, lies a more profound dilemma: whether international society still believes in the desirability, let alone the possibility, of a global legal order anchored in the Security Council. This review essay situates contemporary reform debates against that larger question. It explores how proposals for modest procedural and working-method reforms collide with the political reality of entrenched permanent members; how expansion schemes risk draining attention from more feasible fixes; and how normative disagreements expose the fissure between Kelsenian faith in rules and Schmittian insistence on power. Alongside geopolitical tension, the Security Council must now contend with new existential threats – from climate change to artificial intelligence – that will test its mandate and legitimacy. The deeper problem, however, may not be the Security Council’s structure or procedures but, rather, the mismatch between the expectations placed upon it and what member states are prepared to deliver.